Please read the following information carefully, and note that Direct Wire reserves the right to revise these Terms and Conditions of Sale at any time. ACCEPTANCE – This is an offer for Direct Wire & Cable, Inc. (“Seller”) to sell the product(s) (“Goods”) offered by it to the party to which the Goods are offered (“Buyer”) on the terms and conditions stated herein (“Terms”) and is not an acceptance of any offer or the confirmation of an existing agreement with Buyer. Any Terms in Buyer’s acceptance of Seller’s offer which add to, vary from or conflict with the Terms herein are hereby objected to. The Terms herein, together with such other documents specifically made a part of Seller’s offer, shall constitute the complete and exclusive statement of the Terms of the agreement between the parties (the “Agreement”), shall supersede all previous understandings between the parties (with the exception of any separately negotiated purchase or supply agreement signed by an authorized representative of Seller pursuant to which this transaction is being consummated) which may have existed relating to the Goods, and may hereafter be modified only by a written instrument executed by the authorized representatives of both parties. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Orders which require Buyer’s approval of engineering data, technical drawings, etc., after a purchase order has been submitted to Seller, shall be valid for thirty (30) days from the date of transmittal of documents to Buyer for approval unless otherwise specified. If approval is received by Seller after the thirty (30) days, the order will require reconfirmation and acceptance and will be subject to a possible price adjustment and change in delivery schedule. RISK OF LOSS – ACCEPTANCE OF GOODS – Risk of loss and, unless otherwise specified, title to the Goods shall remain with Seller until the delivered in conformity with the order at the F.O.B. point specified on the face hereof, and upon such delivery title and risk of loss to the Goods shall pass from Seller to Buyer, and Seller’s responsibility for loss or damage shall cease. Buyer shall be deemed to have accepted Goods delivered in accordance with this Agreement unless Seller is notified of rejection with forty-eight (48) hours after delivery of the Goods. If Buyer requests that Seller postpone shipment and Seller stores the Goods at its facility for 30 days or more, Seller may invoice Buyer for storage charges at a rate of 0.5% of the invoiced amount per week. DELIVERY – Shipment and arrival dates specified are approximate only. Seller’s freight obligations are limited to shipping at a competitive rate (which may include certain administrative and/or logistics charges) and excess costs for freight, including expedited delivery, accessorial charges, and special handling, shall be at Buyer’s expense. Quantities shipped shall be subject to standard industry shipping tolerances. Seller shall select the shipping method in its discretion unless otherwise expressly specified by Buyer and the Buyer shall be responsible for any additional cost to related to such a specification. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. RETURNS – Vendor can assist the Customer with a return request for products purchased directly from Vendor. For products purchased through a distributor, the Customer should contact that distributor directly. Customer must notify Vendor of a return, via the Customer RMA Form, within 7 days of product delivery. Returned items must be received to Vendor within 60 days of the return merchandise authorization (RMA) submission date. Vendor reserves the right to refuse receipt of products returned to Vendor without a completed Customer RMA Form, and Customer will remain liable for the full price of the product and related freight. Any items not received to Vendor within the 60-day timeframe will not be credited or replaced. Please be aware that Direct Wire reserves the right to assess a 30% restocking fee on all returned material. PAYMENT AND PRICE – Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase order. Unless otherwise indicated, Seller’s prices are subject to price adjustments based upon fluctuations in raw material prices. Payment is due one hundred (100%) percent net thirty (30) days after invoice date unless specified on the offer or acknowledgement. Buyer will pay interest on overdue accounts at a rate equal to the lesser of one and one-half (1.5%) percent per month, compounded monthly on the unpaid balance, or the maximum amount allowable by applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. PRICE CHANGES & ECONOMIC CIRCUMSTANCES – Please note that all prices are subject to change without prior notice due to the fluctuation of copper pricing, and/or unforeseen economic circumstances.. CREDIT – Seller reserves the right to alter or suspend credit and/or change credit terms when, in its sole opinion, the financial condition of Buyer warrants such action. In such case, in addition to its other remedies provided in these Terms or by law, Seller may: (i) require Buyer to make cash payment or provide security acceptable to Seller, in Seller’s sole discretion, before making shipment; or (ii) accelerate the due date of payment by Buyer under any this or any other contract or order with Seller.. If such payment or security is not provided, Seller may suspend or reduce shipment and stop Goods in transit to Buyer. Without limiting the foregoing, Buyer’s failure to pay any invoice when due will make all other unpaid invoices immediately due and payable and Seller may, at its option, cancel the unfulfilled portion of this Agreement and all other contracts and orders with Buyer (including outstanding quotations to Buyer). Seller may utilize any or all of these remedies in any combination. Seller’s acceptance of partial payment is not a waiver of any right of Seller. Upon any payment default, Buyer agrees to pay Seller its costs of collection, including attorneys’ fees and costs. LIEN – Buyer hereby grants to Seller as security for all debts, liabilities and obligations owing by Buyer to Seller including without limitation the purchase price with respect to the Goods subject hereto, a lien and security in and to, all Buyer’s rights, title and interest in and to the Goods. Buyer hereby appoints Seller, its officers and employees as Buyer’s attorneys-in-fact with full power to execute and file all Statements and other documents as Seller may deem necessary in order to perfect the security interest granted herein. CANCELLATION – Seller reserves the right to cancel the Agreement or any part thereof, or to suspend delivery of any or all Goods hereunder, without liability on its part, if (a) Buyer fails to fulfill the terms of any payment of any invoice or if Buyer’s financial responsibility shall become impaired or unsatisfactory to Seller; or (b) Seller’s ability or that of its supplier to manufacture or deliver the Goods is prevented, impaired or delayed by any force majeure event as contemplated in Section 9 hereof. In the event of a shortage of any of the Goods due to any of the causes or conditions covered by this paragraph, Seller reserves the right to allocate available product among its customers, including Buyer, as it deems equitable. Seller also reserves the right upon the occurrence of any of the foregoing events, to cancel the Agreement. If cancellation occurs as a result of the reasons set forth in (a) above, Buyer shall also compensate Seller for any commitments, obligations, expenditures and expenses and other costs Seller may have incurred in connection with the Agreement. If Buyer cancels its order after acceptance, and the Seller receives the cancellation notice less than sixty (60) days prior to the start of manufacture, Buyer will be subject to a cancellation charge equal to thirty (30%) percent of the unescalated order price, together with an additional charge equal to the Seller’s cost of any raw materials acquired for Buyer’s order. If such cancellation notice is received after manufacture of Buyer’s order has commenced, a cancellation charge equal to thirty (30%) percent of the unescalated order price, plus the value of the work-in-progress less storage value will apply. FORCE MAJEURE – Seller shall not be liable to Buyer, nor be deemed to have defaulted or breached this Agreement, for any loss or damage incurred or suffered as result of any failures or delays in performance due to any cause or circumstance beyond its control and without its fault or negligence or beyond the control of any supplier or subcontractor, including but not limited to any failures or delays in performance caused by acts of God or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantines, strike, lockout, or other work stoppages or interruptions, freight embargoes, default by a common carrier, sabotage, riots, unusually severe weather or other commercial impracticability. WAIVERS AND REMEDIES – Seller’s waiver of any breach or any failure to enforce any of the terms, conditions and specifications of this Agreement shall not in any way affect, limit or waive Seller’s right thereafter to enforce and compel strict compliance with every term, condition and specification thereof. No right of Seller under this Agreement shall be deemed waived unless evidenced in a written document signed by an authorized representative of Seller. All rights and remedies of Seller under this Agreement are cumulative and not exclusive of Seller’s other rights and remedies at law. LIMIT OF LIABILITY a.) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. b.) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER. WARRANTY a.) Seller warrants that the Goods will conform to the Seller’s standards specifications for such material, will be new, and will be free from defects in material and workmanship for a period not to exceed one year from the date Seller shipped the Goods to Buyer. b.) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. c.) Seller’s sole responsibility under this warranty shall be to repair or replace, at Seller’s option, any length of product found defective in material or workmanship, provided (a) the product failed during normal, intended and proper use; (b) the failure is not attributable to improper or unauthorized application, storage, handling, modification or installation; (c) immediate written notice is provided of such failure to Seller; and (d) Seller is given the reasonable opportunity to inspect the failed product. All repairs or replacements by Seller under the provisions of this warranty shall be free of charge, F.O.B. delivery point called for in the original order. Defective Goods shall be returned to Seller by Buyer F.O.B. Buyer’s location unless Seller instructs Buyer to scrap them, in which case Buyer shall credit Seller with the scrap value. d.) THE REMEDIES SET FORTH IN SECTION 12(C) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 12(a). INDEMNIFICATION – If the Goods are manufactured by Seller in accordance with Buyer’s instructions or specifications, Buyer shall indemnify, defend and hold Seller, its parents, subsidiaries and affiliates and its and their directors, officers, agents and representatives (hereinafter collectively referred to in this paragraph as “Seller”) harmless from and against any claim, lien, loss, cost, damage, expense or judgment (including attorney fees) (hereafter collectively referred to as “Damages”) due to any alleged or actual infringement or violation of any patent (domestic or foreign), copyright or other intellectual property right of any person or entity arising out of the manufacture, sale, use, installation or resale of the Goods. In addition to any other indemnification contained herein, Buyer shall indemnify and hold harmless Seller and its parents, subsidiaries, and affiliates, and its and their directors, officers, agents and representatives as well as its subcontractors and suppliers against any and all Damages resulting or claimed to result in whole or in part, by any alleged defects in the Goods resulting from its installation, modification or resale by or for Buyer or use of the Goods manufactured by Seller according to Buyer’s specifications. NON-DISCLOSURE – Data, drawings, specifications or other technical information furnished to Buyer by Seller pursuant to this Agreement shall not become the property of Buyer, shall only be used by Buyer in fulfilling obligations imposed by this Agreement, shall not be duplicated or disclosed to others without Seller’s prior consent, and shall not be construed as granting any rights whatsoever under any intellectual property right of Seller. At Seller’s request, Buyer will promptly return to Seller or otherwise dispose of all drawings, data, specifications or technical information which Buyer has received from Seller in connection with this Agreement, including documents or data prepared by Buyer using Seller’s information. TAXES – Purchase prices do not include sales, use, goods and services, value added, excise or similar taxes. In addition to the prices specified herein, the amount of any such present or future tax applicable to the sale, delivery, import, export or use of the Goods hereunder, which, shall be paid by Buyer. APPLICABLE LAW AND JURISDICTION – This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. For any legal suit, action, or proceeding arising out of or related to this Agreement, the Parties agree that the jurisdiction and venue shall lie only in the Court of Common Pleas of Lancaster County or the Federal District Court for the Eastern District of Pennsylvania and each of the Parties hereby irrevocably consents and submits to the jurisdiction of such courts. The Parties irrevocably waive any objection which the Parties may now or hereinafter have to the laying of the venue of any suit, action or proceeding brought in such court and any claim that such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. SELLER’S PROPERTY – A deposit will be required for all returnable reels, spools, cases and other containers (hereinafter together referred to as “Property”). All such Property is owned by Seller and is loaned for transportation purposes only. The Property should be returned via the means affording the lowest rates to the nearest plant of Seller, freight collect, within twelve (12) months of shipment to Buyer and, upon Seller’s inspection and determination that the Property is in good condition, normal wear and tear excepted, the deposit will be refunded. If the Property is not returned within twelve (12) months or is not returned in good condition, the applicable deposit will be retained by Seller as the agreed-to purchase price of the Property, and ownership to the Property will pass to Buyer. If any Property is returned but not in good condition and title passes to Buyer as described above, such Property must be removed by Buyer within thirty (30) days of notification that title has passed. Seller need not segregate deposits for Property from its general funds. DRAWBACKS – Seller reserves the right to claim drawbacks on any import duties or taxes paid on imported copper, aluminum or other raw materials included in the Goods, and Buyer waives and disclaims any and all rights to such drawbacks, if any of the Goods shall be exported. Buyer authorizes Seller to make entry for and collect drawbacks thereon, agrees to furnish Seller with all documents necessary to obtain payment of such drawbacks and, if such materials are transferred prior to export, will require the exporter to furnish to Seller due proof of exportation. ASSIGNMENT – This Agreement shall not be assigned or transferred without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. MISCELLANEOUS – Unless otherwise indicated, any reference to days in these Terms mean calendar days. The headings for each section of these Terms are for information only and are not part of the Terms. OFFSET – Buyer acknowledges that at any time Seller may assign its right to payment for Goods sold hereunder to a third party. As such, Buyer shall not offset any amounts due to Buyer, or claimed by Buyer, against amounts due in respect of any invoice submitted by Seller hereunder, except to the extent that Buyer’s basis for the offset relates directly to the specific goods and services covered by the related invoice. Accordingly, Buyer expressly waives any other rights to offset that it might otherwise have been able to assert. COMPLIANCE WITH LAW – Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes anti-dumping or countervailing duties or any other penalties on Goods. RELATIONSHIP OF PARTIES – The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. NO THIRD-PARTY BENEFICIARIES – This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. SEVERABILITY – If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. SURVIVAL – Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Law, Non-Disclosure, Applicable Law and Jurisdiction, and Survival.
